A-57020, AUGUST 28, 1934, 14 COMP. GEN. 169

A-57020: Aug 28, 1934

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AS FOLLOWS: ATTENTION IS INVITED TO U.S.STAT.L. OTHER PUBLIC BUILDINGS OUTSIDE OF THE DISTRICT OF COLUMBIA AND OUTSIDE OF MILITARY RESERVATIONS WHICH HAVE BEEN HERETOFORE PURCHASED OR ERECTED. OR ARE AT PRESENT IN COURSE OF CONSTRUCTION OR WHICH MAY HEREAFTER BE ERECTED OR PURCHASED OUT OF ANY APPROPRIATION UNDER THE CONTROL OF THE TREASURY DEPARTMENT. ARE HEREBY EXPRESSLY DECLARED TO BE UNDER THE EXCLUSIVE JURISDICTION AND CONTROL AND IN THE CUSTODY OF THE SECRETARY OF THE TREASURY. WHO SHALL HAVE FULL POWER TO TAKE POSSESSION OF AND ASSIGN AND REASSIGN ROOMS THEREIN TO SUCH FEDERAL OFFICIALS. THE ADMINISTRATION OF FEDERAL BUILDINGS IN WHICH POST OFFICES ARE LOCATED WAS TRANSFERRED FROM THE TREASURY DEPARTMENT TO THIS DEPARTMENT.

A-57020, AUGUST 28, 1934, 14 COMP. GEN. 169

PUBLIC BUILDINGS - LEASING TO PRIVATE PARTIES IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, THE POSTMASTER GENERAL MAY NOT LEGALLY LEASE VACANT SPACE IN FEDERAL POST OFFICE BUILDINGS TO PRIVATE PARTIES, PRIVATE ENTERPRISES, OR COMMERCIAL ACTIVITIES.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, AUGUST 28, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 3, 1934, AS FOLLOWS:

ATTENTION IS INVITED TO U.S.STAT.L., VOL. 30, PAGE 614, WHICH READS AS FOLLOWS:

"THAT ALL COURTHOUSES, CUSTOMHOUSES, POST OFFICE, APPRAISERS' STORES, BARGE OFFICES, SUBTREASURIES, AND OTHER PUBLIC BUILDINGS OUTSIDE OF THE DISTRICT OF COLUMBIA AND OUTSIDE OF MILITARY RESERVATIONS WHICH HAVE BEEN HERETOFORE PURCHASED OR ERECTED, OR ARE AT PRESENT IN COURSE OF CONSTRUCTION OR WHICH MAY HEREAFTER BE ERECTED OR PURCHASED OUT OF ANY APPROPRIATION UNDER THE CONTROL OF THE TREASURY DEPARTMENT, TOGETHER WITH THE SITE OR SITES THEREOF, ARE HEREBY EXPRESSLY DECLARED TO BE UNDER THE EXCLUSIVE JURISDICTION AND CONTROL AND IN THE CUSTODY OF THE SECRETARY OF THE TREASURY, WHO SHALL HAVE FULL POWER TO TAKE POSSESSION OF AND ASSIGN AND REASSIGN ROOMS THEREIN TO SUCH FEDERAL OFFICIALS, CLERKS, AND EMPLOYEES AS IN HIS JUDGMENT AND DISCRETION SHOULD BE FURNISHED WITH OFFICES OR ROOMS THEREIN.'

UNDER EXECUTIVE ORDER NO. 6166 DATED JUNE 10, 1933, THE ADMINISTRATION OF FEDERAL BUILDINGS IN WHICH POST OFFICES ARE LOCATED WAS TRANSFERRED FROM THE TREASURY DEPARTMENT TO THIS DEPARTMENT, AND BY THIS ORDER THE POWER TO TAKE POSSESSION OF AND ASSIGN AND REASSIGN ROOMS WITHIN THESE BUILDINGS TO FEDERAL OFFICIALS AND EMPLOYEES IS NOW VESTED IN THE POSTMASTER GENERAL.

IN A DECISION OF THE COMPTROLLER OF THE TREASURY DATED OCTOBER 11, 1920, TO THE SECRETARY OF THE TREASURY, HE STATES IN PART AS FOLLOWS:

"I FIND NO STATUTORY AUTHORITY IN THE SECRETARY TO LEASE SPACE IN PUBLIC BUILDINGS EVEN THOUGH SUCH SPACE MAY NOT AT THE TIME BE NEEDED FOR GOVERNMENT OFFICES.'

A COPY OF THIS DECISION IS ATTACHED FOR YOUR READY REFERENCE.

THE DEPARTMENT RECEIVES REQUESTS FROM TIME TO TIME TO RENT SPACE IN FEDERAL POST OFFICE BUILDINGS TO COMMERCIAL ACTIVITIES, WHICH SPACE IS NOT AT THE TIME NEEDED FOR GOVERNMENTAL PURPOSES, AND IT WILL BE APPRECIATED IF YOU WILL ADVISE THE DEPARTMENT WHETHER ANY SPACE IN OCCUPIED FEDERAL POST OFFICE BUILDINGS WHICH MAY NOT BE NEEDED BY GOVERNMENT SERVICES MAY BE RENTED TO COMMERCIAL ENTERPRISES. IF YOUR DECISION IS IN THE AFFIRMATIVE, KINDLY STATE WHETHER THE PROCEEDS FROM THE RENTAL OF ANY SPACE WOULD BE DEPOSITED AS A POSTAL RECEIPT OR TO THE GENERAL FUND.

THE EXECUTIVE ORDER NO. 6166 REFERRED TO ABOVE PROVIDES IN PART AS FOLLOWS:

THE OFFICE OF THE SUPERVISING ARCHITECT OF THE TREASURY DEPARTMENT IS TRANSFERRED TO THE PROCUREMENT DIVISION, EXCEPT THAT THE BUILDINGS OF THE TREASURY DEPARTMENT SHALL BE ADMINISTERED BY THE TREASURY DEPARTMENT AND THE ADMINISTRATION OF POST OFFICE BUILDINGS IS TRANSFERRED TO THE POST OFFICE DEPARTMENT. * * *

ARTICLE 4, SECTION 3, CLAUSE 2 OF THE CONSTITUTION OF THE UNITED STATES PROVIDES THAT---

THE CONGRESS SHALL HAVE POWER TO DISPOSE OF AND MAKE ALL NEEDFUL RULES AND REGULATIONS RESPECTING THE TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES, * * *

CONSTRUING THIS PROVISION OF THE CONSTITUTION IT HAS BEEN HELD BY THE COURTS THAT CONGRESS HAS EXCLUSIVE JURISDICTION IN THE MATTER OF DIRECTING WHAT SHOULD BE DONE WITH LAND OR OTHER PROPERTY OWNED BY UNITED STATES. UNITED STATES V. NICOLL, 1 PAINE (U.S.) 646; GRATIOT V. UNITED STATES, 15 PETERS 336; IRVINE V. MARSHALL, 20 HOWARD 53; LIGHT V. UNITED STATES, 220 U.S. 523.

IN SOME SPECIFIC INSTANCES THE POWER OF LEASING LANDS AND BUILDINGS TO PRIVATE PARTIES OR PRIVATE ENTERPRISES HAS BEEN DELEGATED BY CONGRESS TO THE HEAD OF AN EXECUTIVE DEPARTMENT OR OTHER EXECUTIVE OFFICER. THUS, BY SECTION 3749, REVISED STATUTES, THE SOLICITOR OF THE TREASURY IS AUTHORIZED TO RENT FOR A PERIOD NOT TO EXCEED THREE YEARS, LANDS ACQUIRED BY THE UNITED STATES UNDER JUDICIAL PROCESS OR OTHERWISE IN THE COLLECTION OF DEBTS DUE THE GOVERNMENT. SEE ALSO SECTION 9 OF THE ACT OF MARCH 3, 1863, 12 STAT. 740. THE ACT OF MARCH 3, 1879, 20 STAT. 383, AUTHORIZES THE SECRETARY OF THE TREASURY TO LEASE FOR A PERIOD NOT EXCEEDING 5 YEARS SUCH UNOCCUPIED AND UNPRODUCTIVE PROPERTY OF THE UNITED STATES UNDER HIS CONTROL FOR THE LEASING OF WHICH THERE IS NO OTHER AUTHORITY UNDER EXISTING LAW. SIMILAR AUTHORITY IS GIVEN THE SECRETARY OF WAR BY THE ACT OF JULY 28, 1892, 27 STAT. 321, FOR PROPERTY OF THE UNITED STATES UNDER HIS CONTROL AND BY THE ACT OF MARCH 4, 1909, 35 STAT. 959, THE SECRETARY OF THE TREASURY IS AUTHORIZED TO RENT BUILDINGS ON LANDS ACQUIRED FOR PUBLIC BUILDING SITES. THE ACT OF AUGUST 26, 1912, 37 STAT. 605, AUTHORIZES THE SECRETARY OF THE INTERIOR, UNTIL REMOVAL BECOMES NECESSARY, TO RENT ANY BUILDING OR BUILDINGS OR VACANT LAND THAT MAY BE ACQUIRED UNDER THE PROVISIONS OF THE SUNDRY CIVIL ACTS OF JUNE 25, 1910, 36 STAT. 738, AND MARCH 4, 1911, OR SUBSEQUENT ACTS FOR THE ENLARGEMENT OF THE CAPITOL GROUNDS.

FROM THE FOREGOING IT APPEARS THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, GOVERNMENT OFFICERS AND HEADS OF DEPARTMENTS MAY NOT LEGALLY RENT GOVERNMENT-OWNED PROPERTY, BUILDINGS, OR PARTS OF BUILDINGS, TO PRIVATE PARTIES OR PRIVATE ENTERPRISES. WITH RESPECT TO THE SPACE IN THE BUILDINGS TO WHICH YOU REFER, THE MATTER APPEARS TO BE IN NO DIFFERENT STATUS THAN AT THE TIME THE DECISION BY A FORMER COMPTROLLER OF THE TREASURY WAS RENDERED OCTOBER 11, 1920, CITED AND QUOTED IN YOUR LETTER, AND ACCORDINGLY I HAVE TO ADVISE THAT UNDER EXISTING LAW YOU ARE NOT AUTHORIZED TO LEASE SUCH SPACE TO PRIVATE PARTIES, PRIVATE ENTERPRISES, OR COMMERCIAL ACTIVITIES.